Gimenez v. Borough of Elmwood Park

• Decision Date: 10 May 2022
• Docket Number: Civil Action 2:17-cv-07177
• Parties: DARIO GIMENEZ, [1] Plaintiff, v. BOROUGH OF ELMWOOD PARK, WILLIAM WOODS, THOMAS KOCHIS, JOHN AND JANE DOES, 1-10 fictitious persons yet to be identified, MICHAEL FOLIGNO, ANDREW DRAING, CHARLES KEENAN, and MICHAEL PRELICH, Defendants.
• Court: U.S. District Court — District of New Jersey

DARIO GIMENEZ, ^[1] Plaintiff, v. BOROUGH OF ELMWOOD PARK, WILLIAM WOODS, THOMAS KOCHIS, JOHN AND JANE DOES, 1-10 fictitious persons yet to be identified, MICHAEL FOLIGNO, ANDREW DRAING, CHARLES KEENAN, and MICHAEL PRELICH, Defendants.

Civil Action No. 2:17-cv-07177

United States District Court, D. New Jersey

May 10, 2022

OPINION

Before the Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. ECF No. 87. For the reasons below, Defendants' motion will be granted.

I

A

In 2015, Defendants Elmwood Park Police Detectives Thomas Kochis and William Woods began investigating activity at 390 Boulevard Avenue in Elmwood Park. Woods Dep. 10:9-15, ECF No 87-9. Citizens complained about illegal events at the house, and a confidential informant (“CI”) reported that drug sales occurred there. Woods Dep. 10:1-8 10:19-11:1, 17:8-13, ECF No. 87-9; see also Kochis Dep. 21:9-16, ECF No. 87-8. The citizen complaints specifically named Plaintiff Dario Gimenez as engaging in illegal activity at the house. Kochis Dep. 49:2-4, ECF No 87-8; ECF No. 87-5 at 38. The record shows that Paige Appel and Manuel Vasquez resided at the house and Gimenez spent time there.^[2] Woods Dep. 23:10-25, ECF No. 87-9; Gimenez Dep. I 52:3-8, 54:15-20, ECF No. 88-4.

Law enforcement had contact with these individuals. For example, on May 24, 2015, Appel was present and talked with police when they responded to an overdose at the house. ECF No. 87-6 at 49; Woods Dep. 23:10-25, ECF No. 87-9. On July 11, 2015, police stopped Gimenez following a traffic violation, ECF No. 87-6 at 26; Kochis Dep. 27:8-17, ECF No. 87-8, and observed the cap of a hypodermic syringe near the driver's seat and blood stains on him, ECF No. 87-6 at 26. A K-9 drug detection dog indicated the presence of drugs, and Gimenez was arrested for possession of drugs and drug paraphernalia. ECF No. 87-6 at 26-27; see also Kochis Dep. 30:1-9, ECF No. 87-8.

During August and September 2015, Woods and Kochis conducted three controlled drug purchases at 390 Boulevard with the help of the CI. Each time, Woods and Kochis parked undercover vehicles outside the house so they had “clear unobstructed view of the residence.” ECF No. 87-5 at 38-41, 50-51; see also ECF No. 87-6 at 3, 10, 18. For each purchase, the CI called a phone number the CI said belonged to Gimenez.^[3] The officers stated that (1) the first call led to the purchase of cocaine from Appel, ECF No. 87-5 at 50; ECF No. 87-6 at 9; (2) the second call led to a purchase of cocaine and marijuana from Gimenez, ECF No. 87-5 at 50-51; ECF No. 87-6 at 17, and (3) the third call, which was unanswered, eventually led to a call to Vasquez and the purchase of cocaine, ECF No. 87-5 at 41, 51; ECF No. 87-6 at 23. Gimenez denies he sold drugs and asserts that trees on the street would have obstructed a view of the front of the house. Gimenez Dep. I 81:17-82:2, 83:5-17, ECF No. 88-4.

Kochis applied for a warrant to search the house, Gimenez, Appel, Vasquez, and anyone in the house “reasonably believed to be associated with this investigation.” ECF No. 87-5 at 41. According to the affidavit submitted in support of the warrant, (1) Kochis and Woods met with the CI, who (a) advised them that an individual named “Dario” or “D” was “dealing large amounts of illegal narcotics from his residence” at 390 Boulevard, ECF No. 87-5 at 37; (b) provided a phone number for “D, ” ECF No. 87-5 at 37; and (c) identified a driver's license photo of Dario Gimenez as “D, ” ECF No. 87-5 at 37-38; (2) the Elmwood Park Police (a) received multiple citizens' complaints concerning drug sales at 390 Boulevard, ECF No. 87-5 at 38; (b) arrested two individuals on April 1, 2015 for possession and possession with intent to distribute narcotics at 390 Boulevard, ECF No. 87-5 at 38; (c) responded to a heroin overdose at 390 Boulevard on May 24, 2015, ECF No. 87-5 at 38; (d) arrested Gimenez on July 11, 2015 for drug offenses, ECF No. 87-5 at 38; and (e) conducted surveillance in which officers observed drivers park in the driveway of 390 Boulevard, enter the house, “exit a short time later[, ] and then quickly leave the area, ” ECF No. 87-5 at 38; and (3) the CI conducted three controlled buys involving individuals connected to 390 Boulevard, ECF No. 87-5 at 38-41. Based on this affidavit, a New Jersey Superior Court judge issued the search warrant on September 18, 2015. ECF No. 87-5 at 44-47.

Members of the Elmwood Park Police's Narcotics Enforcement Unit, including Defendants Woods, Kochis, Andrew Draing, Charles Keenan, and Michael Prelich, executed the warrant the same day. ECF No. 87-5 at 51. The officers did not use body-worn cameras (“BWCs”).^[4] When officers arrived, they found Vasquez in a living room and Gimenez and Appel in an upstairs bedroom. Woods Dep. 70:15-71:13, ECF No. 87-9. In the upstairs bedroom, officers found, among other things: (1) clear plastic baggies, some of which contained a powder suspected to be cocaine, (2) drugs underneath a fish tank, (3) a smoking pipe, (4) $738 in U.S. currency, (5) a digital scale; and (6) a metal grinder. Kochis Dep. 66:9-14, ECF No. 87-8 at 42; ECF No. 87-5 at 51-52; ECF No. 87-7 at 34, 38-43; ECF No. 88-4 at 237. Officers took photographs showing Gimenez's driver's license next to a digital scale, syringes, and plastic baggies on the bedroom's desk. See, e.g., ECF No. 87-7 at 38-40. It is undisputed that the license was moved before officers took photographs.^[5] See Woods Dep. 78:21-23, ECF No. 87-9; Gimenez Dep. II 73:7-12, ECF No. 87-9.

Gimenez, Appel, and Vasquez were arrested. ECF No. 87-5 at 49. The next day, September 19, 2015, Woods filed (1) a complaint-warrant against Gimenez for (a) possession of cocaine and (b) possession with intent to distribute cocaine, ECF No. 88-4 at 406; and (2) a complaint-summons against Gimenez for (a) possession of drug paraphernalia and (b) possession of hypodermic needles, ECF No. 88-4 at 408. In a separate complaint-warrant that Woods filed on September 23, 2015, Gimenez was charged with possession with intent to distribute cocaine within 500 feet of a public park. ECF No. 88-4 at 410. All of the charges were based on the events of September 18, 2015. Gimenez's bail was set at $100, 000. ECF No. 88-4 at 406. He did not make bail, so he was detained until trial. Gimenez Dep. I 157:17-22, ECF No. 88-4.

In January 2016, Woods testified before a grand jury that (1) the CI made three drug purchases from 390 Boulevard, ECF No. 87-7 at 7; (2) the search of 390 Boulevard revealed crack cocaine, hypodermic needles, plastic baggies, a scale, a metal grinder, smoking pipes, and $738, ECF No. 87-7 at 8-9; (3) Gimenez, Appel, and Vasquez were occupants of 390 Boulevard, ECF No. 87-7 at 9; and (4) he determined, using a map, that 390 Boulevard was within 500 feet of Gall Avenue Park, ECF No. 87-7 at 12. The grand jury returned an indictment charging Gimenez^[6] with (1) cocaine possession; (2) possession with intent to distribute cocaine; and (3) possession with intent to distribute cocaine in a park zone.^[7] ECF No. 87-7 at 17-18. Gimenez proceeded to trial in June 2017 on the indicted counts as well his two paraphernalia charges from the complaint-summons. ECF No. 87-7 at 19; see also ECF No. 88-4 at 408. He was found guilty of only possession with intent to use drug paraphernalia and was ordered to pay fines. ECF No. 87-7 at 19.

B

Gimenez filed suit against the Borough of Elmwood Park, Woods, and Kochis, ^[8] alleging claims under 42 U.S.C. § 1983 and the New Jersey Civil Rights Act (“NJCRA”), N.J.S.A. § 10:6-2, for false arrest and false imprisonment (Count I); malicious prosecution (Count II); fabrication of evidence (Count III); abuse of process (Count IV); supervisory liability (Count V); and civil conspiracy (VI). ECF No. 1. In an Amended Complaint, Gimenez named police officers Draing, Keenan, Prelich, and Chief Michael Foligno as additional defendants, added a Monell claim for municipal liability that repeated his supervisory liability allegations from the original complaint, and renewed his civil conspiracy claim. ECF No. 73. Gimenez's parallel NJCRA claims are collectively alleged in Count VII.

Following discovery, Defendants moved for summary judgment, ECF No. 87, which Gimenez opposes, ECF No. 88. This matter was assigned to the undersigned for the limited purpose of resolving the motion for summary judgment. ECF No. 98.

II^[9]

The Court will address each of Gimenez's claims in turn.^[10]

A

Gimenez brings federal and state claims for false arrest, false imprisonment, and malicious prosecution. See ECF No 73 at 70-97, 118 ¶¶ 17-21, 28-29. To prevail on each claim, Gimenez must show he was arrested, or charged (in the case of malicious prosecution^[11]), without probable cause. James v. City of Wilkes-Barre, 700 F.3d 675 680, 682-83 (3d Cir. 2012) (false arrest); Harvard v. Cesnalis, 793 F.3d 190, 202 (3d Cir. 2020) (false imprisonment); Wright v. City of Philadelphia, 409 F.3d 595, 604 (3d Cir. 2005) (malicious prosecution); Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir. 1998) (same). Thus, if the officers had probable cause to arrest Gimenez, each of these claims fails. See Wildoner v. Borough of Ramsey, 744 A.2d 1146, 1154 (N.J. 2000) (“[P]robable cause is an absolute defense to Plaintiff's false arrest, false imprisonment, and malicious prosecution claims[.]”).

Here, we must examine whether the officers had (1) probable cause to search the residence and (2) probable cause to arrest Gimenez.

Gimenez argues that “Woods and Kochis made misrepresentations and omissions in their application for a search warrant of 390 Boulevard” by relying on “false” information from the CI, and thus the search warrant lacked probable cause. Pl....